The Requirement of ”New Public” as One of the Constituent Elements of Communication of Copyright Protected Works to the Public in Digital World Under the European Union Law

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http://urn.fi/URN:NBN:fi:hulib-201510133659
Title: The Requirement of ”New Public” as One of the Constituent Elements of Communication of Copyright Protected Works to the Public in Digital World Under the European Union Law
Author: Klobučník, Lucius
Contributor: University of Helsinki, Faculty of Law
Publisher: University of Helsinki
Date: 2015
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-201510133659
http://hdl.handle.net/10138/157504
Thesis level: master's thesis
Discipline: Kauppaoikeus
Commercial law
Handelsrätt
Abstract: The main aim of this thesis is to analyse the “new public” requirement of communication to the public right which was introduced on the European Union level in the SGAE case. Closer attention is given not only to the SGAE case but many other subsequent cases where the “new public” requirement was used either directly in the CJEU’s reasoning or in Advocat General’s opinion. The case law discussion is divided in three parts according to the (technical) forms of communication used (broadcasting, music playing, linking). The thesis tries to find connecting points among the discussed cases and scrutinizes closely under which circumstances the “new public” was used, what were the main reasons for such usage and whether some similar or even contradicting points can be found in CJEU case law regarding the “new public” requirement of communication to the public. The interplay between the “new public” requirement as well as other tests of communication to the public introduced by the CJEU is discussed. These other tests/ conditions such as “profit-making nature” of the communication in question or “specific technical means” of the communication are analysed closely and discussed from the point whether they can co- exist with the “new public” requirement, whether they suppress the “new public” requirement, render it irrelevant, or, on the other hand, are suppressed by the “new public” requirement. With regard to the scope and length of the thesis, only CJEU case law is taken into account. However, attention is given also to renowned scholars in the field of copyright law, opinions of associations and unions representing copyright holders, authors, users etc. This thesis takes into account a broader European and international legal framework, on interpretation of which the “new public” requirement is based, such as the InfoSoc Directive, WIPO Copyright Treaty, Berne Convention etc. The implementation of international treaties into the European Union law is discussed. The thesis does neither omit soft law documents regarding the future of EU copyright law and its possible amendments either on EU or international level. In the conclusion part the thesis tries to assess whether the “new public” requirement can find its place in the upcoming EU copyright reform, especially in the light of the aforementioned other criteria of communication to the public and different forms of commucation of copyright protected works.


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